Inn and Town move again to dismiss lawyer’s amended petition
Though the Washington Town Council conducted its business Monday night in another just-under-an-hour-long monthly meeting at town hall, most of the news from town again came from the other end of Gay Street.
That would be at the Circuit Court clerk’s office.
There, on Friday (July 10), town resident Dawn Schimke filed a motion to intervene in lawyer David Konick’s suit against the town of Washington and the Inn at Little Washington — essentially asking to become a plaintiff in Konick’s petition, which asks the court to invalidate actions the town council took in 2013 as part of the Inn’s “Town Square Beautification Project.”
Circuit Court Judge Jeffrey W. Parker ruled May 18 that Konick, who lives near Rock Mills, did not have the standing to pursue the legal action because he wasn’t a town resident. If Schimke’s motion is granted, that could change (although Schimke points out she wasn’t a town resident in 2013, when the council’s contested actions took place).
A hearing on the motion has not yet been scheduled.
“I have followed everything very carefully from the beginning of the controversy,” said Schimke, a longtime Rappahannock resident who’s rented a house on Main Street for the past year, “and I thought, certainly, that without being blameful or pointing fingers, there were errors made. Really, that’s all I thought about it. I was certain that when it went to court the first time, it would be settled. But it wasn’t.
“I agreed with the logic behind the suit,” she said by phone Tuesday. “With our elected officials, they need to be on the up and up and transparent. There were mistakes made.”
Schimke’s motion repeats the claims of Konick’s original March suit, as well as the amended petition he filed earlier this month — against which, also last week, lawyers for the both town and the Inn filed new “demurrer” motions reiterating that the suit has no legal basis and should not be heard.
Those claims are: that the town violated Virginia’s constitutional ban on church-state transactions (because it appropriated $20,000 toward the Inn’s still-unfinished $200,000 project, which included paving and landscaping the parking lot owned by Trinity Episcopal Church across the street from the Inn’s main entrance); that conflict of interest and procurement laws were violated by the council and by Inn owner Patrick O’Connell, who also serves on the council, in the months leading up to the July 2013 appropriation; and that the town improperly abandoned the 170-foot stub end of Middle Street west of Main, where the Inn planned landscaping and other improvements that would connect the properties it owns on all three sides.
Robert Mitchell, the attorney hired by the town to defend it in circuit court (because town attorney John Bennett may be called as a witness), wrote in his demurrer motion last week that Konick’s amended petition merely “reorganizes” and “rehashes” the attorney’s claims. Inn attorney David Fiske’s motion uses the term “regurgitates.” Both quote Parker’s May 18 ruling, in which the judge wrote that “based on the pleadings it is unclear how [Konick] would be capable of remedying the defects in the pleading.”
The Inn filed a countersuit two weeks ago seeking $100,000 in punitive damages from Konick for his “abuse of the legal process.”
“Everyone is trying to talk me out of this,” said Schimke. “Including Mr. Konick.” Schimke said she “reached out” to Konick and offered to intervene, “and he said, ‘I’m going to try to talk you out of it if I can.’ I thought about it long and hard, how this would affect me —I don’t consider myself a political person, and I don’t like a lot of attention. But I didn’t feel right not doing something.”
In an email Tuesday night, Washington Mayor John Sullivan said: “Since March, Mr. Konick has threatened and bullied the town, saying he would he would use every legal means to tie us up forever and bankrupt the town. He has filed numerous suits. He has appealed to the Commonwealth’s Attorney, the State Police, the state attorney general to intervene. All of have rejected his efforts. He has accused us of criminal behavior and called us a disgrace. . . . He has said he will never let go unless we kowtow to his demands . . . including paying him off to go away. All because he doesn’t agree with the town council decisions.
“The judge has already expressed skepticism of Mr. Konick’s arguments and I look forward to his rulings on the merits of the contested issues as well as Mr. Konick’s abuse of the legal process.”
Reached Wednesday afternoon, Konick said he didn’t even know until Schimke contacted him and expressed an interest in joining the suit that she lived in town.
“It must be a sign from God,” he said.
Among the first actions of the few taken by the council at Monday night’s meeting was paying the town’s monthly bills. These included about $6,000 in fees to special counsel Mitchell and town attorney Bennett.
From July to December last year, according to records provided by the town, the town spent $11,362 on legal fees, mostly for Bennett’s normal monthly services. From January to June this year, the town spent $50,368 for both Bennett’s and Mitchell’s services — including a $10,815 May invoice from Bennett.
The council also voted 6-0 to pass a resolution Monday (with O’Connell recusing himself) requesting the Virginia Department of Motor Vehicles remove the stub end of Middle Street from its secondary road system — the last apparent council action to “redo” the original 2013 abandonment that Konick claims was illegal and or improper (and which Bennett himself has said was “deficient” and taken responsibility for).
During a failed attempt last month to reach an out-of-court settlement, Konick had reportedly suggested that the town accept a “nominal fee” for the real estate under the stub street — $5,000 was reportedly the number suggested — to avoid further legal fees.